Claim of Walker v. Narolewski

Appeal by an employer and its insurance carrier from a decision and award of the Workmen’s Compensation Board, the sole issue arising upon appellants’ contention that the accident and injury did not arise out of and in the course of the employment. Claimant worked six days a week, between the hours of 9:00 a.m. and 9:00 p.m. or 10:00 P.M., as a cook and dishwasher in employer’s restaurant and slept on the premises. After retiring, he got up in the night to straighten up because of a “charley horse” and slipped and fell on the waxed floor of his room, thereby sustaining a fracture of his hip. Claimant had worked for the employer and lived on the premises for about four years, under an agreement whereby he was paid $25 per week and furnished his room and board. He was not subject to call after finishing his work at night. Asked by the referee why he slept on the premises, he said, “Because that was the agreement. So much salary, room and board.” The employer did not testify [736] but the answer served by him and a coemployer, in an action in negligence brought by claimant (after the referee’s initial disallowance of the claim herein) alleged as a defense that at the time of the accident plaintiff was in the defendants’ employ; that his injuries arose out of the course of the employment; that defendants had secured workmen’s compensation for their employees; and that plaintiff was entitled to receive the compensation benefits provided for him under the Workmen’s Compensation Law. Claimant’s testimony as to the contract of employment; the employer’s interpretation of it, implicit in the allegations of his pleading above alluded to; and the fact of the long and late hours of the employment; constituted substantial evidence that claimant’s residence on the premises was “ a part of the service and of benefit to the employer as well as to the employee”. (Matter of Culver v. Sevilla Home for Children, 262 App. Div. 620, 622, citing inter alia, Matter of Giliotti v. Hoffman Catering Co., 246 N. Y. 270.) As in the Culver case (where claimant, off duty and not subject to call, slipped and fell on the oiled hardwood floor in her bedroom), “ The accident was caused by a condition in the employer’s premises, which as a part of her contract of employment she was then occupying, so that clearly it arose out of her employment.” The affirmance of the award in Matter of Madigan v. United Hosp. (274 App. Div. 1077), motion for leave to appeal denied 299 N. Y. 799) was (as disclosed by the record on appeal) upon facts markedly similar to those in the instant case. (See, also, Matter of Lewis v. River Crest Sanitarium Co., 277 App. Div. 914, affd. 302 N. Y. 655.) Dean Larson aptly remarks upon the analogy between the factual situation in cases such as that before us and that of a plant worker injured during a rest period on the premises. (1 Larson on Workmen’s Compensation Law, § 24.30, pp. 379-381.) Our decision in Matter of Groff v. Uzzilia (1 A D 2d 273, affd. 2 N Y 2d 840) does not support appellants’ position. On the contrary, we there said (p. 275) : “A sharp distinction must be drawn between the cases of employees who are required to live on the employer’s premises, either by virtue of the contract of employment or by reason of the nature of the employment, and eases of employees who are merely permitted to reside on the premises for their own convenience but who are not required to do so.” (Emphasis supplied.) We found claimant Groff to be in the latter classification but consider that the board could properly find the case of this claimant-respondent within the category first stated. In our view, the testimony elicited from claimant on cross-examination which seems to be the basis of appellants’ argument and the factual basis of the dissenting memorandum as well, is no more than conjecture. For example, claimant was asked, “ if you had been working there and receiving $40 a week and stayed somewhere else, the salary would have been $40 a week?” He replied, “I presume that would have been it”, following which he reiterated that the agreement was as he had stated it. Neither do we give to the allegation of a rental arrangement in claimant’s complaint in his action at law weight and effect comparable to that accorded the allegations of the defendant’s answer. The referee’s initial disallowance of the plaim in compensation rendered necessary and proper the position which claimant assumed in the action subsequently brought. Award affirmed, with costs to the Workmen’s Compensation Board. Foster, P. J., Gibson and Reynolds, JJ., concur.